Unit2Sucks said:I don't think I missed the point of the post I was responding to since that focused on your claim that dajo doesn't understand strict scrutiny.calbear93 said:Unit2Sucks said:I tend to agree with dajo that this is not a worthwhile discussion but I'm also not sure why you are bringing the legal standard of review into the discussion.calbear93 said:Deflection.dajo9 said:calbear93 said:So, under this racist nation that has an uneven foundation, blacks as community cannot succeed as a collective on a merit-based system? Or is it just harder that they can overcome if they put little more shoulder into it. Because if it's that, then affirmative action definitely is unconstitutional since it is not narrowly tailored to address a compelling state interest. So, your pivot on "harder' doesn't work. So, why, under our constitution, is it OK for state bodies to discriminate based on race? How does that survive strict scrutiny on state action that discriminates based on race?dajo9 said:calbear93 said:If you believe affirmative action is necessary (which I don't), what part of the substance of that tweet do you disagree with? And if you disagree with it, why is affirmative action necessary?dajo9 said:
That Twitter account is real as a $3 bill
My post was about using a fake account to make Democrats look dumb. But since you asked, affirmative action is a good thing because we have an uneven playing field derived from centuries of bigotry and systemic racism. That's very different from saying "no" black person can succeed. It's an acknowledgment that it is harder for black people to succeed.
If it is because blacks cannot succeed on a merit-based system, then there is a compelling state interest and maybe affirmative action without quotas is narrowly tailored. Otherwise, it doesn't work.
So, what part of the tweet do you disagree with or is your objection that, while you agree with the substance, it is from a bot account?
You're really itching for arguments tonight aren't you? I long ago stopped arguing affirmative action with people. Most people don't have the mental maturity for the concept.
You clearly do not understand the strict scrutiny standard of judicial review for determining constitutionality when there is law or action that involves suspect classification like race.
And since you don't understand it, you say I lack mental maturity. OK. That must be it.
SCOTUS previously found that affirmative action was permissible under strict scrutiny because it served a compelling interest and was narrowly tailored. The court today said it fails on both counts. I don't think anything has changed except the political makeup of the court. This isn't a result of a ground swell of public support, a change in underlying conditions or a result of some fundamental shift in society. It's just that that Leonard Leo was able to get more of his guys on the court. That's it, nothing more. If Clinton had won in 2016, we wouldn't be having this discussion.
We've long since passed the point where anyone can credibly pretend that the "interpretation" of the constitution isn't arbitrary and capricious at times. Just about everyone on the political spectrum can come up with examples that they like and don't like which show this.
I'll give one example where I agreed with the judge - in Heller Scalia claimed that the 2nd amendment does not guarantee a right to short-barreled shotguns. His argument is that those types of guns weren't commonly in use by law-abiding citizens when the 2A was drafted. I think his argument is arbitrary and capricious. I'm sure we could go back and forth for quite some time with other examples.
The other thing worth noting is that this SCOTUS pays little heed to settled precedent. During confirmation they pay minor lip service to it but they won't hesitate to overturn cases they disagree with in the least. It's not just our SCOTUS either, the North Carolina supreme court flipped last year and immediately overturned a case that had been decided by the same court just a few months prior on voting rights.
I think you missed the point. I respect your legal analysis but my question to Dajo which you seemed to have missed was whether he agreed with the content of the tweet. He tried to have his cake and eat it too by saying that without affirmative action, it is just harder but didn't want to go as far as agree with the content of the tweet for being in favor of affirmative action. That is why I brought up the strict scrutiny that it would not survive under his rationale.
But on your point of precedent, courts do give deference to precedent but all of the significant progress came from breaking with precedent. Brown vs Board of Education does not happen without overturning the precedent. And what was once compelling state interest does not make it always a compelling interest. Even the precedent that previously found affirmative action to survive the strict scrutiny review indicated that it may no longer be constitutional if the society changes enough.
On the Scalia case, that was him being an originalist true to his principle. Not arbitrary. Just not willing to overstep the legislative or constitutional strict reading to impose new meaning at the judicial level beyond what was intended by the legislators at the time of adoptions
As for precedent, I think it's become clear that this court is less deferential to precedent than prior courts across some pretty large decisions over the past year and I don't expect it to stop.
As for Scalia, there was nothing in the constitution or in the framers intent that would indicate that they would be in favor of semi-automatic handguns but not short-barreled shotguns. To me the whole "originalist" thing is just a cover for doing what they want and they seem willing to ignore the text and historical record when convenient for their ends.
If that was what you were doing and you were following the discussion on the tweet, then you lost me.
And I don't know what the right amount of disturbing precedent vs not acceptable amount is. To me, they are fixing precedents that were flawed, and it is within their authority to do so. Political leanings will determine one's opinion on whether they are doing too much or the right amount, Understand that the theatrics in the confirmation process deals with respect for precedents but none of the candidates are ever forthcoming.
Yeah, I think I disagree with you that the originalist viewpoint from Scalia was a sham. Agree to disagree.
